GALLINA v. MTA CAPITAL CONSTRUCTION COMPANY (2021)

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered January 14, 2020, which, to the extent appealed from as limited by the briefs, granted defendants’ summary judgment motion dismissing the Labor Law § 241(6) claim insofar as premised upon a violation of Industrial Code § 23–1.7(e)(1), and denied the motion as to Industrial Code § 23–1.7(e)(2), unanimously modified, on the law, to reinstate the Industrial Code § 23–1.7(e)(1) claim, and otherwise affirmed, without costs.

Defendants’ contention that plaintiff's accident occurred in a storage room, unconnected to the ongoing construction, is not supported by the record.  The details concerning the physical layout of the accident site are nearly impossible to discern from the evidence submitted.  And while defense counsel repeatedly used the phrase “material room” in his questions to the witnesses, neither witness acceded to the existence of such a room.  Defendants’ own site safety manager, who walked the site daily, testified that he did not know of the existence of a material storage room, testifying instead that there were materials kept throughout the site, hoisted through street level holes to various points on the site (see Smith v. Hines GS Props., Inc., 29 A.D.3d 433, 815 N.Y.S.2d 82 [1st Dept. 2006];  Canning v. Barney's N.Y., 289 A.D.2d 32, 734 N.Y.S.2d 116 [1st Dept. 2001];  compare Dacchille v. Metropolitan Life Ins. Co., 262 A.D.2d 149, 692 N.Y.S.2d 47 [1st Dept. 1999]).  Therefore, the claim premised on Industrial Code § 23–1.7(e)(2), pertaining to tripping hazards in “working areas,” was properly sustained.

The court, however, should not have dismissed the Labor Law § 241(6) claim premised upon Industrial Code § 23–1.7(e)(1), pertaining to tripping hazards in “passageways.”  Again, it cannot be said, based upon the vague and often inconsistent testimony in the record, that the area of plaintiff's fall was not a passageway (see Prevost v. One City Block LLC, 155 A.D.3d 531, 65 N.Y.S.3d 172 [1st Dept. 2017];  Cumberland v. Hines Interests Ltd. Partnership, 105 A.D.3d 465, 963 N.Y.S.2d 173 [1st Dept. 2013];  Costabile v. Damon G. Douglas Co., 66 A.D.3d 436, 885 N.Y.S.2d 602 [1st Dept. 2009]).  Defendants’ arguments concerning a lack of notice are without merit.  “Since an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241(6) liability” (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998];  see Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603, 604, 56 N.Y.S.3d 55 [1st Dept. 2017]).

We have considered defendants’ remaining contentions and find them unavailing.