SANDE v. TRINITY CENTRE LLC (2020)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered November 5, 2019, which denied plaintiffs' motion for partial summary judgment as to liability on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23–1.7(e)(2) and 23–3.3(k) and the Labor Law § 200 and common-law negligence claims, unanimously modified, on the law, to grant plaintiffs' motion as to the Labor Law § 241(6) claim predicated on 12 NYCRR 23–1.7(e)(2), and otherwise affirmed, without costs.

The court correctly denied plaintiffs' motion as to the Labor Law § 200 claim on the ground that plaintiffs failed to make a prima facie showing that defendants were on notice of the pile of debris that caused the injured plaintiff's accident (see Canning v. Barney's N.Y., 289 A.D.2d 32, 734 N.Y.S.2d 116 [1st Dept. 2001] ).  Their expert, who was not a witness, could not speak to, and did not address, the issue of defendants' notice of the pile of debris, and his opinions in other respects were conclusory (see Cassidy v. Highrise Hoisting & Scaffolding, Inc., 89 A.D.3d 510, 511, 932 N.Y.S.2d 456 [1st Dept. 2011] ).

The court correctly determined that 12 NYCRR 23–3.3(k), one of the predicates for the Labor Law § 241(6) claim, did not apply to this case, as there is no evidence that there was demolition in progress or that the pile of debris resulted from demolition, and the pile did not consist of “materials” being “stored.”

However, plaintiffs are entitled to summary judgment on the Labor Law § 241(6) claim premised upon a violation of 12 NYCRR 23–1.7(e)(2).  The fact that the injured plaintiff tripped not on the debris itself but on an electrical box concealed by the debris does not alter the fact that the debris was a cause of the accident (see Licata v. AB Green Gansevoort, LLC, 158 A.D.3d 487, 71 N.Y.S.3d 31 [1st Dept. 2018] ).