Natalia Giancola, Plaintiff, v. YALE CLUB OF NEW YORK CITY (2018)

Order, Supreme Court, New York County (Debra A. James, J.), entered July 11, 2017, which, insofar as appealed from as limited by the briefs, denied plaintiff Christopher Giancola's cross motion for partial summary judgment on the common-law negligence and Labor Law § 200 and § 240(1) claims, and granted defendant's motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously modified, on the law, without costs, to deny defendant's motion, and to grant plaintiff's cross motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Plaintiff's cross motion for partial summary judgment on the Labor Law § 240(1) claim should have been granted.  There is no issue of fact as to whether it was foreseeable that the particle board covering an escape hatch on top of the elevator car where plaintiff was required to work would collapse when traversed by him (see Restrepo v. Yonkers Racing Corp., Inc., 105 A.D.3d 540, 964 N.Y.S.2d 17 [1st Dept. 2013];  see also Kircher v. City of New York, 122 A.D.3d 486, 997 N.Y.S.2d 41 [1st Dept. 2014] ).  It is not dispositive that the escape hatch covering was not intended to serve as a safety device protecting workers from elevation-related risks.  Rather, since plaintiff's work exposed him to such risks, he was required to be provided with adequate safety devices in compliance with Labor Law § 240(1) (see Jones v. 414 Equities LLC, 57 A.D.3d 65, 78–79, 866 N.Y.S.2d 165 [1st Dept. 2008] ).  Insofar as Bonura v. KWK Assoc., 2 A.D.3d 207, 770 N.Y.S.2d 5 (1st Dept. 2003) holds to the contrary, the reason in that case was rejected by the court in Jones.

The court properly denied plaintiff's cross motion on the common-law negligence and Labor Law § 200 claims.  The record presents triable issues as to whether defendant had notice that the escape hatch cover, which was comprised of particle board, posed a hazard and whether it was defendant's employees that caused this hazardous condition (see Debellis v. NYU Hosps. Ctr., 12 A.D.3d 320, 786 N.Y.S.2d 145 [1st Dept. 2004] ).