JACKSON v. HUNTER ROBERTS CONSTRUCTION GROUP LLC (2018)

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 15, 2017, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's complaint alleging violation of Labor Law §§ 200, 240(1), and 241(6) and common law negligence, unanimously modified, on the law, the motion granted to the extent of dismissing the Labor Law §§ 240(1) and 241(6) claims, and otherwise affirmed, without costs.

Plaintiff claims that he and a coworker were carrying a water main pipe when he lost his balance upon stepping on a makeshift ramp that “bowed.”  The weight of the pipe caused them to fall and, as plaintiff was trying to push or eject the pipe from his shoulder to prevent it from landing on him, the pipe struck either a cart or a column, retracted back, and struck him in the leg.

The motion court properly denied defendants' motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims as premature.  Regardless of whether the court misinterpreted defendants' October 11, 2016 letter as seeking further discovery, the record indicates that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f] ).  As no representatives from defendants have been deposed, and the record suggests that crucial facts may be within defendants' knowledge, additional discovery is necessary (see Baghban v. City of New York, 140 A.D.3d 586, 33 N.Y.S.3d 695 [1st Dept. 2016];  Figueroa v. City of New York, 126 A.D.3d 438, 439, 5 N.Y.S.3d 62 [1st Dept 2015] ).

However, defendants are entitled to dismissal of the Labor Law § 240(1) claim.  Plaintiff's testimony established that he was not exposed to the type of elevation-related hazard contemplated by the statute.  The height differential of 6 to 10 inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute (see Sawczyszyn v. New York Univ., 158 A.D.3d 510, 511, 73 N.Y.S.3d 131 [1st Dept. 2018];  Torkel v. NYU Hosps. Ctr., 63 A.D.3d 587, 590, 883 N.Y.S.2d 8 [1st Dept. 2009] ).  Also, as the ramp was serving as a passageway, as opposed to the “functional equivalent” of a safety device enumerated under the statute, it did not fall within the purview of the statute (see Gomez v. City of New York, 63 A.D.3d 511, 881 N.Y.S.2d 65 [1st Dept. 2009];  Paul v. Ryan Homes, 5 A.D.3d 58, 60–61, 774 N.Y.S.2d 225 [4th Dept. 2004];  cf. Foutfana v. City of New York, 211 A.D.2d 550, 621 N.Y.S.2d 572 [1st Dept. 1995] ).  Further, the impetus for the pipe's descent was plaintiff's loss of balance, rather than the direct consequence of the force of gravity (see Carrera v. Westchester Triangle Hous. Dev. Fund Corp., 116 A.D.3d 585, 585, 984 N.Y.S.2d 339 [1st Dept. 2014];  Ghany v. BC Tile Contrs., Inc., 95 A.D.3d 768, 945 N.Y.S.2d 657 [1st Dept. 2012] ).

Defendants are also entitled to dismissal of the Labor Law § 241(6) claim.  Plaintiff relies on only 12 NYCRR § 23–1.5(c).  Although 12 NYCRR § 23–1.5(c)(1) and (2) are too general to serve as Labor Law § 241(6) predicates, 12 NYCRR § 23–1.5(c)(3) is sufficiently specific to support a claim (see Becerra v. Promenade Apts. Inc., 126 A.D.3d 557, 558, 6 N.Y.S.3d 42 [1st Dept. 2015] ).  However, 12 NYCRR § 23–1.5(c)(3) is inapplicable, as the ramp does not constitute a “safety device,” “safeguard,” or “equipment” as used in the provision.