TOLK v. 11 WEST 42 REALTY INVESTORS (2022)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered June 16, 2021, which, to the extent appealed from as limited by the briefs, granted defendant CJS Industries Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to reinstate plaintiff's Labor Law § 241(6) claim to the extent it is predicated on violation of 12 NYCRR 23–1.7(d), and otherwise affirmed, without costs.

For purposes of the applicability of Industrial Code (12 NYCRR) § 23–1.7(d), a staircase may constitute a passageway when that staircase is the sole access to the work site (see Harasim v. Eljin Constr. of N.Y., Inc., 106 A.D.3d 642, 643, 966 N.Y.S.2d 387 [1st Dept. 2013];  Wowk v. Broadway 280 Park Fee, LLC, 94 A.D.3d 669, 670, 944 N.Y.S.2d 23 [1st Dept. 2012]).  Here, plaintiff and his coworkers were required to use the loading dock entrance, where they would check in with security and go down to the basement level;  from the basement, the workers proceeded to the floors where construction was ongoing.  Although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff's uncontradicted testimony showed that the workers used the staircase, not the elevator.  At the time of plaintiff's accident, he was with several coworkers, all of whom had just checked in with the security guard and were using the staircase.  CJS offered no evidence that any of the workers for any of the contracted trades used the single-stop elevator for purposes other than delivering construction material.  Under these circumstances, where the staircase on which plaintiff fell the way in which the workers generally accessed the basement level, the staircase was a passageway for Labor Law § 241(6) purposes (see Potenzo v. City of New York, 189 A.D.3d 705, 706, 139 N.Y.S.3d 156 [1st Dept. 2020]).

The motion court correctly dismissed plaintiff's Labor Law § 200 and common-law negligence claims.  The only evidence regarding the wet condition on the staircase was plaintiff's testimony that the condition was created by a building maintenance worker shortly before the accident.  Indeed, plaintiff testified that he confronted the worker, who was carting a large barrel of liquid with a hose attached, and that the worker apologized, as did his supervisor.  Thus, there is no evidence that CJS caused the condition, was aware of the condition, or could be charged with constructive notice (see DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623, 626, 12 N.Y.S.3d 79 [1st Dept. 2015]).