CROSS v. Thomas Bellemare, Ltd., Defendant. (2018)

Order, Supreme Court, New York County (Debra A. James, J.), entered May 17, 2017, which, to the extent appealed from as limited by the briefs, granted the Noble defendants' motion for summary judgment the extent of dismissing plaintiff's Labor Law § 241(6) claim, denied the Noble defendants' motion to the extent they sought summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and sua sponte granted plaintiff summary judgment on his Labor Law § 240(1) claim, unanimously modified, on the law, to deny plaintiff summary judgment on his Labor Law § 240(1) claim, and otherwise affirmed, without costs.

The motion court correctly dismissed plaintiff's Labor Law § 241(6) claim.  Plaintiff fell due to a chain catching his foot, and not due to a slippery condition or foreign substance, and thus Industrial Code (12 NYCRR) § 23–1.7(d) was not implicated (see Militello v. 45 W. 36th St. Realty Corp., 15 A.D.3d 158, 159, 789 N.Y.S.2d 23 [1st Dept. 2005];  Croussett v. Chen, 102 A.D.3d 448, 958 N.Y.S.2d 105 [1st Dept. 2013] ).  Plaintiff fell from a tractor trailer, and not in a passageway, rendering Industrial Code § 23–1.7(e)(1) inapplicable (see Solano v. Skanska USA Civ. Northeast Inc., 148 A.D.3d 619, 620, 50 N.Y.S.3d 360 [1st Dept. 2017];  Dalanna v. City of New York, 308 A.D.2d 400, 401, 764 N.Y.S.2d 429 [1st Dept. 2003] ).  The metal bars welded to the trailer's body for use as a ladder or stairway to the trailer's top were not a “[s]ingle ladder[ ]” subject to Industrial Code § 23–1.21(c).

The motion court should not have sua sponte granted plaintiff summary judgment on his Labor Law § 240(1) claim.  Plaintiff, who was attaching lifting lugs to a wind turbine base tower so it could be hoisted off its trailer and onto a concrete foundation, was engaged in an enumerated activity under that provision (see Naughton v. City of New York, 94 A.D.3d 1, 940 N.Y.S.2d 21 [1st Dept. 2012];  Myiow v. City of New York, 143 A.D.3d 433, 436, 39 N.Y.S.3d 1 [1st Dept. 2016];  Phillip v. 525 E. 80th St. Condominium, 93 A.D.3d 578, 940 N.Y.S.2d 631 [1st Dept. 2012] ).  Nevertheless, questions of fact exist as to whether plaintiff was the sole proximate cause of his accident (see Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 [1st Dept. 2009] ).

We have considered the parties' remaining contentions and find them unavailing.