MOONEY v. BP CG CENTER II LLC (2020)

Judgment, Supreme Court, New York County (Margaret A. Chan, J.), entered October 12, 2017, dismissing the complaint, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered August 15, 2017, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants are not liable under Labor Law § 200 or in common-law negligence for injuries plaintiff suffered when he knelt on a screw lying on the floor of the construction site where he was installing cabinets.  The record demonstrates that defendants neither created or had notice of the condition of the floor nor exercised control over the manner and means of plaintiff's work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993]; Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012]).  Plaintiff testified that the work area was clean at the time of the incident and that he had looked but not seen the screw before kneeling on it.

Nor are defendants liable under Labor Law § 241(6).  Plaintiff cites as the predicate for this claim a violation of Industrial Code (12 NYCRR) § 23–1.7(e)(1) or (e)(2).  However, the single screw upon which he knelt does not constitute an “accumulation[ ] of dirt and debris” (12 NYCRR 23–1.7[e][1]; see Garcia v. Renaissance Gardens Assoc., 242 A.D.2d 463, 662 N.Y.S.2d 260 [1st Dept. 1997]).  Additionally, construing the term “sharp projections” as used in 12 NYCRR 23–1.7(e)(2) broadly (see Lenard v. 1251 Ams. Assoc., 241 A.D.2d 391, 393–394, 660 N.Y.S.2d 416 [1st Dept. 1997], appeal withdrawn 90 N.Y.2d 937, 664 N.Y.S.2d 275, 686 N.E.2d 1370 [1997]), the single screw does not constitute a sharp projection.  It did not project from the floor, and it was not sharp in the sense of being “clearly defined or distinct” (id. at 393, 660 N.Y.S.2d 416); cf. Canning v. Barney's N.Y., 289 A.D.2d 32, 34–35, 734 N.Y.S.2d 116 [1st Dept. 2001] [loop of wire projecting about 18 inches from wheel of debris-containing dumpster in which it had become entangled constituted accumulated debris] ).