GREENWOOD v. WHITNEY MUSEUM OF AMERICAN ART (2018)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered September 7, 2017, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law §§ 240(1), 241(6), and 241–a claims, unanimously modified, on the law, to deny the motion as to the Labor Law §§ 241(6) and 241–a claims, and to dismiss the unpleaded Labor Law § 241–a claim, and otherwise affirmed, without costs.

Plaintiff sustained injuries during construction of a building when a piece of scrap metal fell on him.  The piece of metal was being used by his co-worker, who was welding steel about 30 feet above on a lift, as a “dunnage” to secure a “fire blanket” to prevent sparks from igniting objects in surrounding areas.  At the time, plaintiff was “fire watching,” which required him to remove flammable objects and suppress any fires started by errant sparks.

The court correctly granted plaintiff partial summary judgment on his Labor Law § 240(1) claim inasmuch as the record establishes that plaintiff's injury was the proximate result of the failure to take adequate steps to secure the piece of scrap metal from falling from the height at which it was being used.

Plaintiff's Labor Law § 214–a claim was raised for the first time in his supplemental bill of particulars, served only three days before he filed his summary judgment motion, and was not alleged in the complaint.  We therefore dismiss the section 241–a claim (Paterra v. Arc Dev. LLC, 136 A.D.3d 474, 24 N.Y.S.3d 631 [1st Dept. 2016] ), without prejudice to plaintiff's moving, if so advised, to amend the complaint to add such a claim.

Triable issues of fact preclude partial summary judgment on the Labor Law § 241(6) claim.  The claim is predicated on 12 NYCRR § 23–2.5(a)(1), which requires placement of planks in shafts “not more than two stories or 30 feet, whichever is less, above the level where persons are working.”  Questions of fact exist as to whether the piece of steel fell from “more than two stories or 30 feet,” and whether the placement of planks would be antithetical to plaintiff's work by, for example, obstructing his view, or increasing the risk of fires caused by sparks (see McLean v. 405 Webster Ave. Assoc., 98 A.D.3d 1090, 1094–1095, 951 N.Y.S.2d 185 [2d Dept. 2012];  Boyle v. 42nd St. Dev. Project, Inc., 38 A.D.3d 404, 835 N.Y.S.2d 7 [1st Dept. 2007] ).