CRUZ v. EE JV LLC (2021)

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered January 28, 2020, which, to the extent appealed from as limited by the briefs, granted the Transit Authority defendants' motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law §§ 200 and 241(6) claims, unanimously affirmed, without costs.

The Labor Law § 241(6) cause of action was properly dismissed.  The berm consisting of loose dirt and debris on which plaintiff and his coworker were standing, and which was supporting the water main that they were attaching to beams overhead before excavation could continue, “did not constitute a ‘slippery condition’ as contemplated by 12 NYCRR 23–1.7(d)” (Miranda v. City of New York, 281 A.D.2d 403, 404, 721 N.Y.S.2d 391 [2d Dept. 2001]).  Indeed, there was no “foreign substance which may cause slippery footing [to] be removed, sanded or covered” (12 NYCRR 23–1.7[d];  see Fitzgerald v. Marriott Intl., Inc., 156 A.D.3d 458, 458, 64 N.Y.S.3d 883 [1st Dept. 2017];  Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559 [2d Dept. 2003];  D'Acunti v. New York City School Constr. Auth., 300 A.D.2d 107, 107, 751 N.Y.S.2d 459 [1st Dept. 2002]).

As to the lighting conditions, there is no evidence to establish that “that the amount of lighting fell below the specific statutory standard” (Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732, 733, 821 N.Y.S.2d 178 [1st Dept. 2006], lv denied 8 N.Y.3d 814, 839 N.Y.S.2d 453, 870 N.E.2d 694 [2007];  see 12 NYCRR 23–1.30).  Testimony confirms that headlamps allowed plaintiff's coworker to see plaintiff's face on the other side of the three-foot-wide water main, and to see the metal washer before it fell, while plaintiff could see where he was walking, and saw the washer slide down the berm after it fell (compare Boggs v. City of New York, 135 A.D.3d 583, 583, 22 N.Y.S.3d 858 [1st Dept. 2016] [nearest light 50 feet away];  Hernandez v. Columbus Ctr., LLC, 50 A.D.3d 597, 598, 857 N.Y.S.2d 84 [1st Dept. 2008] [“street light 150 to 200 feet away”];  Verel v. Ferguson Elec. Constr. Co., Inc., 41 A.D.3d 1154, 1158, 838 N.Y.S.2d 280 [4th Dept. 2007] [no artificial lighting in area]).

The negligence and Labor Law § 200 claims were also properly dismissed.  Although plaintiff's and his coworker's testimony diverged on the details of whether the coworker slipped and knocked the washer down (see Lebron v. New York City Hous. Auth., 158 A.D.3d 503, 505, 71 N.Y.S.3d 42 [1st Dept. 2018], quoting Benitez v. New York City Board of Educ., 73 N.Y.2d 650, 659, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989] [“issues of proximate cause are generally fact matters to be resolved by a jury”]), the berm was “ ‘part of or inherent in’ the very work being performed,” supporting the water main that plaintiff and his coworker were bracing (Bombero v. NAB Constr. Corp., 10 A.D.3d 170, 171, 780 N.Y.S.2d 333 [1st Dept. 2004], quoting Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110, 242 N.Y.S.2d 205, 192 N.E.2d 163 [1963]).  The testimony also establishes that the muddy and slippery condition of the berm was readily observable (id.).