FAVALORO v. [And a Third-Party Action] (2021)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 29, 2018, which, to the extent appealed from as limited by the briefs, (1) granted the branches of plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim and his Labor Law § 241(6) claim insofar as predicated on Industrial Code (12 NYCRR) § 23–1.30, as against defendants Port Authority of New York & New Jersey (Port Authority), Turner Construction Co. (Turner), and Halmar International (Halmar), and denied the branches of defendants' separate cross motions for summary judgment dismissing those claims, (2) granted the branches of defendants' cross motions for summary judgment dismissing the Labor Law § 241(6) claim insofar as predicated on Industrial Code (12 NYCRR) § 23–1.7(b)(1)(i), and denied the branch of plaintiff's motion for summary judgment on the issue of liability on that claim, and (3) denied the branch of Turner, defendant Two World Trade Center, LLC (2WTC), and Halmar's cross motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against Halmar, unanimously affirmed, without costs.

As an initial matter, Turner, 2WTC, and Halmar's argument that they are not proper Labor Law defendants is improperly raised for the first time on appeal (see Agli v. Turner Constr. Co., 237 A.D.2d 173, 174, 655 N.Y.S.2d 365 [1st Dept. 1997];  Yaucan v. Hawthorne Vil., LLC, 155 A.D.3d 924, 927, 63 N.Y.S.3d 721 [2d Dept. 2017]).

Plaintiff was properly awarded summary judgment on his Labor Law § 240(1) claim.  Plaintiff asserts that he was injured when, while walking on what was in effect a below-grade level, he stepped on a piece of unsecured plywood that was partially covering a concrete hole, causing the plywood to fly up and plaintiff's right leg to fall into the hole up to his hip, which struck the concrete.  Contrary to defendants' contention, the facts that plaintiff's fall occurred below grade and that plaintiff did not fall all the way through the hole do not take his fall out of the ambit of Labor Law § 240(1).  Rather, Supreme Court correctly determined that plaintiff's accident arose from a gravity-related risk against which defendants failed to adequately protect him (see e.g. Sunun v. Klein, 188 A.D.3d 507, 508–509, 135 N.Y.S.3d 386 [1st Dept. 2020];  Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 235–236, 658 N.Y.S.2d 919 [1st Dept. 1997];  see also Robertti v. Powers Chang, 227 A.D.2d 542, 543, 642 N.Y.S.2d 715 [2d Dept. 1996], lv dismissed 88 N.Y.2d 1064, 651 N.Y.S.2d 407, 674 N.E.2d 337 [1996]).

Because the hole that plaintiff stepped into was not a “hazardous opening” within the meaning of 12 NYCRR 23–1.7(b), defendants were entitled to summary judgment dismissing plaintiff's Labor Law § 241(6) claim to the extent it is based upon that section of the Industrial Code. Plaintiff did not fall all the way through because his hip struck the concrete footing.  “Reading the regulation as a whole,” 12 NYCRR 23–1.7(b)(1)(i) applies to openings deep enough for a person to fall all the way through (Messina v. City of New York, 300 A.D.2d 121, 123, 752 N.Y.S.2d 608 [1st Dept. 2002]).  No measurement in the record supports an inference that plaintiff could have fallen all the way through the hole.

Plaintiff was, however, properly awarded summary judgment on his Labor Law § 241(6) claim based on 12 NYCRR 23–1.30 (Illumination).  Plaintiff testified that the only lighting in the area he was working in was from floodlights some 80 feet above and that it was very dark.  Defendants failed to raise an issue of fact that the lighting as it existed at the time of plaintiff's accident was adequate.

Triable issues of fact remain as to whether plaintiff's accident was caused by a dangerous premises condition (the uncovered hole), Halmar's means and methods (i.e., its alleged failure to secure the plywood cover over the hole), or some combination thereof, and as to Halmar's liability under the applicable standard governing liability both pursuant to Labor Law § 200 and for common-law negligence (see e.g. Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 420–421, 123 N.Y.S.3d 581 [1st Dept. 2020]).